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Congressional Inquiry and the Federal Criminal Law

Federal criminal law has become so far-reaching that scholars and commentators on both the political left and political right have joined forces to demand serious reforms related to defining, prosecuting, and punishing federal crimes. This Article makes the case for greater attention to, and use of, congressional inquiry powers - investigation and oversight - to constrain the massive federal criminal law regime. This Article first identifies, through existing law and scholarship, some of the problems of the federal regime, including over-federalization, anemic limits on prosecutorial power, and the ordinary politics that contribute to these problems. Using the 2009 and 2010 House hearings on over-criminalization as a case study, this Article argues that both political and constitutional incentives exist for Congress to use its powers of inquiry more robustly to address these problems. Although there is force in the conventional wisdom about the political disincentives for reform and in the contention that investigation and oversight are weak constraints, this Article argues that the conventional wisdom is overstated and that constitutional government demands both a serious effort at criminal law reform and healthy conflict with the executive (which would be an inevitable consequence of the reform effort). By enabling sober and informed discourse about constitutional limits in defining the criminal law, and by asserting congressional prerogatives to hold executive branch actors accountable for their own role in perpetuating the federal criminal law behemoth, robust congressional inquiry of the federal criminal justice regime can help to restore at least some of Congress’s constitutional consciousness.